Wednesday, July 25th, 2007

Anders Brief and Motion to Withdraw Must Be Explained Verbally to Illiterate Defendant

United States v. Santiago, No. 06-5136-cr (2d Cir. July 18, 2007) (Cabranes, Raggi, CJJ, Berman, DJ)

In this case, the defendant received the bottom of an agreed-upon sentencing range – 135 months’ imprisonment – and waived his right to appeal. He nevertheless filed a notice of appeal and counsel filed an Anders brief and motion to withdraw. Counsel also forwarded to the court of appeals a copy of the letter she sent to the client notifying him of her actions. The court, however, concluded that this might not be enough. It noted that the presentence report indicated that the defendant was illiterate and thus that there was a possibility that he might not have understood the documents he received. “At a minimum, when counsel knows or has reason to believe that the client may be illerate, she must make some reasonable effort to contact the defendant in person to explain the contents of the Anders notice documents or arrange to have someone read them to him.” The court accordingly denied counsel’s motion to withdraw, subject to a renewed motion that complies with this procedure.

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